Friday, January 06, 2012Last Update: 9:26 AM PT

'Grandma Got Run Over by a Reindeer' Fight Can Carry On

SAN JOSE, Calif. (CN) - A federal judge has again refused to dismiss copyright claims over a YouTube video of "Grandma Got Run Over By a Reindeer." Elmo Shropshire, who goes by the stage name of Dr. Elmo, filed suit over a video of his 1979 holiday hit that appeared on YouTube. Aubrey Canning Jr., a Canadian resident, allegedly combined Christmas-related pictures with audio of "Grandma" being sung by the Canada-based Irish Rovers. Shropshire says Canning ignored multiple requests from his manager to remove the video, ultimately telling the manager to "contact the video site managers and get my video removed. I won't be doing it." YouTube did remove the video for a short time after Shropshire filed a copyright-infringement notification, but it restored the file after Canning filed a counternotice stating that he believed his video constituted fair use. Koh dismissed Shropshire's first infringement lawsuit against Canning in January, but the second amended complaint filed in February has fared better. Canning tried again to dismiss, claiming Shropshire improperly omitted another party who co-owns the rights to the song. By not including Patsy Trigg in the suit, Canning said Shropshire exposed him to multiple lawsuits and potentially inconsistent obligations. U.S. District Judge Lucy Koh called Canning's argument "untenable," finding that the court's previous order requiring Trigg's joinder does not now require dismissal for failure to maintain Trigg because "circumstances have changed." Shropshire satisfied the joinder rule by filing the second amended complaint with Trigg as a defendant, Koh ruled. Trigg had the opportunity but refused to be joined as a plaintiff and chose not to claim an interest, relinquishing her interest and freeing Canning from exposure to the claimed "substantial risk of incurring double, multiple or otherwise inconsistent obligations." Trigg and Shropshire stipulated to Trigg's dismissal from the case in August 2011. Koh further noted that the second amended complaint cures previously noted deficiencies by including specific factual allegations regarding the distribution of proceeds from the "Grandma" song among Shropshire; Kris Publishing, the name under which Trigg operates; BMG Rights Management; and composer Randy Brooks. Thus the court is "no longer concerned that it is unable to accord complete relief among the remaining parties in Trigg's absence." Koh also chastised Canning for apparently using the joinder rule "to engage in gamesmanship." "Abuse of the rule will not be condoned," she wrote, adding that Canning should have raised the issue earlier if he felt that Trigg's dismissal would impair his interests and expose him to multiple or inconsistent obligations. Instead Canning declined to be a party to the settlement dismissing Trigg from the action, did not object to the terms of the settlement and filed the underlying motion only after Trigg was dismissed.